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EVIDENCE PROOF OF FOREIGN LAW – APPLICATION OF LEX FORI. The plaintiff brought an action to recover for personal injuries suffered in Cuba
hrough the defendant's negligence. There was no lence of Cuban aw. Held, that the plaintiff is not entitled to recover. Cuba R. Co. v. Crosby, U. S. Sup. Ct., Jan. 9, 1912.
The court holds that the law of the forum should not be applied, since there is no general presumption that the Cuban law is the same as the common law. This decision reverses the decision in the Circuit Court of Appeals, criticized in 23 Harv. L. Rev. 64.
EXECUTION REMEDY OF BONÆ FIDE PURCHASER OF PROPERTY TO WHICH JUDGMENT DEBTOR HAS NO TITLE. The sheriff sold on execution two horses which were not the property of the judgment debtor. The owner successfully replevied the horses from the bona fide purchaser. Held, that the purchaser may recover from the judgment creditor in an action for money had and received. Dresser v. Kronberg, 81 Atl. 487 (Me.).
The doctrine of caveat emptor, admittedly applicable to execution sales, has appeared to text writers to be inconsistent with any right of recovery by the purchaser, even though he acquires absolutely no title. See FREEMAN, VOID JUDICIAL SALES, 4 ed., $ 49; KLEBER, VOID JUDICIAL AND EXECUTION SALES, § 469. However, recovery from the judgment debtor is commonly allowed on the ground that the purchaser has paid money to the debtor's use by discharging his debt. Julian v. Beal, 26 Ind. 220; M'Ghee v. Ellis, 4 Litt. (Ky.) 244. Neither this nor the doctrine of the principal case, it is submitted, is inconsistent with the doctrine of caveat emptor. The right of the judgment creditor is against the debtor's property, and the writ is directed solely against such property. Heberling v. Jaggar, 47 Minn. 70, 49 N. W. 396; Burwell v. Herron, 16 So. 356 (Miss.). The purchaser relies on what is professed, namely, the sale of the debtor's right in the chattel. If the debtor has no right, then there is a total failure of consideration, and so the money paid is not properly applicable to the debt. The contrary view is inequitable toward the debtor because depressing prices at execution sales. The principal case provides for a wholly equitable result, for if recovery by the purchaser is allowed against the judgment creditor, the creditor may thereupon have his judgment against the debtor vacated and a new execution awarded on the ground that the debt has never been paid. Magwire v. Marks, 28 Mo. 193; Bressler v. Martin, 133 Ill. 278, 24 N. E. 518. But cf. Thomas v. Glazener, 90 Ala. 537, 8 So. 153. So, it seems, the principal case is correct. See Sanders v. Hamilton, 3 Dana (Ky.) 550, 552. Contra, England v. Clark, 5 Ill. 486; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119. If, however, there are intervening circumstances making recovery inequitable, e. g. bankruptcy of the debtor, then the purchaser should not be allowed to recover.
HABEAS CORPUS REVIEW OF HABEAS CORPUS PROCEEDINGS. From an order in habeas corpus proceedings, discharging a prisoner, error was brought. Held, that the order is not reviewable. Wisener v. Burrell, 28 Okl. 546, 118 Pac. 999. See Notes, P. 460.
HUSBAND AND WIFE RIGHTS OF WIFE AGAINST HUSBAND AND IN HIS SEPARATE PROPERTY RIGHT TO BE REIMBURSED FOR EXPENDITURES FOR NECESSARIES. — The plaintiff, a married woman, having been abandoned by her husband without just cause, and being unable to procure necessaries on his credit, purchased them with the proceeds of her labor and of her separate estate. She sought to recover from her husband the amount so expended. Held, that the plaintiff can recover. De Brauwere v. De Brauwere, 203 N. Y. 460.
The Court of Appeals, in affirming the judgment of the Appellate Division, expressly repudiates the theory of subrogation, and bases the right of action on the breach of the legal duty to support. For a discussion of the principles involved see 24 Harv. L. Rev. 306.
INJUNCTIONS Acts RESTRAINED BILL OF REVIEW IN ANOTHER STATE. The wife of a divorcee sued in New York to enjoin the first wife from prosecuting an action in Illinois to annul the decree of divorce granted by the Illinois court. The Illinois decree had previously been adjudged valid by the New York courts in an action by the first wife against the divorcee. Held, that the injunction should not be granted. Guggenheim v. Wahl, 203 N. Y. 390, 96 N. E. 726.
It is clearly settled that a court of equity can enjoin parties within its jurisdiction from proceeding in an action in a foreign state when it would be inequitable to compel the complainant to defend in that state. Gordon v. Munn, 81 Kan. 537, 106 Pac. 286; Miller v. Miller, 66 N. J. Eq. 436, 58 Atl. 188. In general, the proceeding to restrain which an injunction is granted involves questions which are in litigation or could properly be litigated in the jurisdiction in which the injunction is granted. Von Bernuth v. Von Bernuth, 76 N. J. Eq. 177, 73 Atl. 1049; Kempson v. Kempson, 58 N. J. Eq. 94, 43 Atl. 97. In the principal case, however, the only forum in which the defendant can bring a bill of review is in Illinois. Mathias v. Mathias, 202 III. 125, 66 N. E. 1042. This seems to the court to be conclusive. It should at least, it is submitted, be of very great weight, on the ground of comity. Bigelow v. Old Dominion Copper Mining, etc. Co., 74 N. J. Eq. 457, 71 Atl. 153. See Harris v. Pullman, 84 Ill. 20, 28; Peck v. Jenness, 48 U. S. 612, 624-625. As it is not shown that the complainant cannot get full and adequate relief in Illinois, the injunction is properly refused. Nor is the holding inconsistent with the doctrine of res judicata, for the complainant was not a party to the previous suit in New York.
INJUNCTIONS - ACTS RESTRAINED — PRIVATE NUISANCE ENJOINED THOUGH INJUNCTION Causes ExcessIVE HARDSHIP. — The defendant, a large cement manufacturing company, was enjoined from continuing operations because a neighboring fruit-grower showed that the dust, unavoidably liberated from its furnaces, was a nuisance to him. On appeal, the defendant prayed a stay of the injunction pending the appeal and showed that the shutting down of its plant, even temporarily, would cause tremendous losses to it. Held, that the defendant is not entitled to the stay. Hulbert v. California Portland Cement Co., 118 Pac. 928 (Cal.).
This decision accords with the well-established rule that a court of equity will interfere to prevent “private eminent domain.” The court refuses to give any weight to the so-called “balance of hardship” doctrine that is finding favor with a growing minority of the American courts and is rapidly infringing upon the older rule. For a discussion of this doctrine see 22 Harv. L. Rev. 596.
LEGACIES AND DEVISES — PAYMENT INTEREST ON LEGACY PAYABLE OUT OF REVERSIONARY PROPERTY. — A testator bequeathed £10,000 to his sister to be paid out of the estate inherited by him from his mother. This consisted of a reversion following a life interest in his father. The testator died seven years before his father. Held, that the sister's legacy bears interest from the expiration of one year after the death of the testator. Re Walford, 132 L. T. J. 58 (Eng., C. A., Nov. 1, 1911).
The general rule is that when no particular time is set for the payment of legacies, they are payable with interest from the expiration of one year after the death of the testator. See Lord v. Lord, L. R. 2 Ch. 782, 789. The appli
cation of this rule will not be defeated by the fact that the estate could not be got in within the year, or that the court had ordered the payment to be delayed beyond that time. Martin v. Martin, 6 Watts (Pa.) 67; Bonham v. Bonham, 38 N. J. Eq. 419. It will apply although the estate consists largely of reversionary interests. In re Blachford, 27 Ch. D. 676. An intent on the part of the testator that it should not apply has been inferred where the payment of interest on preferred legacies from that date would prevent the payment of other legacies. Wheeler v. Ruthven, 74 N. Y. 428. But this case must be limited to its special facts. Matter of Rutherfurd, 196 N. Y. 311, 89 N. E. 820. Very clear evidence of a contrary intent is necessary to prevent the operation of the general rule. See 2 Ill. L. Rev.440. It has been held, however, against the principal case, that where a legacy is payable out of a reversion it carries interest only from the time that the reversion falls in. Earle v. Bellingham, 24 Beav. 448; Gibbon v. Chaytor, (1907] 1 I. R. 65. See 2 JARMAN, Wills, 6 ed., 1108.
LIBEL AND SLANDER — PRIVILEGED COMMUNICATIONS — ACTION AGAINST WITNESS AND Party INDUCING HIM TO TESTIFY FALSELY. A wife sued her husband for a divorce and upon a claim for money. The husband procured a witness to testify falsely that the wife had committed adultery with her attorney, whereby the divorce suit and money claim were lost. The attorney, who had been assigned a part interest in the money claim, sued the witness and the husband in an action of tort. Held, that he has a cause of action against neither. Schaub v. O'Ferrall, 81 Atl. 789 (Md.).
The witness is protected from actions of slander by his absolute immunity while testifying. Seaman v. Netherclist, 2 C. P. D. 53; Hunckel v. Voneiff, 69 Md. 179, 14 Atl. 500. The same policy promoting free testimony bars all actions against him for perjury. Damport v. Sympson, Cro. Eliz. 520; Dunlap v. Glidden, 31 Me. 435. But his co-defendant has intentionally harmed the plaintiff without excuse and has not the protection of the witness stand. One inducing another to do harm is not relieved by the fact that the other has a defense. Hoosac Tunnel Dock & Elevator Co. v. O'Brien, 137 Mass. 424; Emery v. Hapgood, 7 Gray (Mass.) 55. See The Bernina, 12 P. D. 58, 83. Where the witness slanders a stranger to the suit, the instigator is liable. Coolidge, 121 Mass. 393. But to limit litigation, a party to the suit cannot sue for subornation of perjury where the false testimony was made in connection with an issue raised therein. Smith v. Lewis, 3 Johns. (N. Y.) 157; Taylor v. Bidwell, 65 Cal. 489, 4 Pac. 491. An attorney is neither party nor privy. But the attorney here was partial assignee. Where statutes allow the real party in interest to sue, he may join with the assignor. Fireman's Fund Ins. Co. v. Oregon R. Smo Navigation Co., 45 Or. 53, 76 Pac. 1075; Earnest v. Barrett, 6 Ind. App. 371, 33 N. E. 635. But cf. Otis v. Adams, 56 N. J. L. 38, 27 Atl. 1092. Without such statute, he is in substance a co-owner of the claim and should be concluded by the judgment against the assignor. His proper remedy is a bill in equity to set it aside. See 1 BLACK, JUDGMENTS, 2 ed., 8 317. But see 6 POMEROY, EQUITY JURISPRUDENCE, S 656.
MANDAMUS PROCEEDINGS PREMATURE COMMENCEMENT. — The defendant railroads were ordered by a commission to make track connections within ninety days. They manifested a determination to disobey the order. Three days later application was made for a writ of mandamus. Held, that the action is not premature. State ex rel. Dawson v. Chicago, B. & Q. R. Co., 118 Pac. 872 (Kan.).
The general rule is that mandamus will issue only upon actual default in a duty owed by the defendant at the time of the application for the writ. State ex rel. Board of Education v. Hunter, in Wis. 582, 87 N. W. 485. It is said that courts will not anticipate the omission of a legal duty. State ex rel. Piper v. Gracey, 11 Nev. 223. Many of these cases could be supported either on the ground that, like the remedy of specific performance, mandamus is granted only in the sound discretion of the court, or on the ground that no legal duty rested on the defendant. United States ex rel. Langley v. Bowen, 6 D. C. 196; Northwestern Warehouse Co. v. Oregon Ry. & Navigation Co., 32 Wash. 218, 73 Pac. 388. The prevailing view seems inconsistent with the very nature of mandamus, which is to prevent a failure of justice. Attorney General v. City of Boston, 123 Mass. 460. As the court points out, often the benefits of the act will be lessened or lost, and irremediable damage done, unless it is performed within the stated time. State ex rel. Howells v. Metcalf, 18 S. D. 393, 100 N. W. 923. An opposite result would secure to the public punctual performance, and if the writ were not made peremptory, the defendant could not be unduly prejudiced by being forced to show justification for a refusal to perform. See Chicago, etc. R. Co. v. Commissioners of Chase County, 49 Kan. 399, 414, 30 Pac. 456, 459. The decision, although overruling previous Kansas cases, and contrary to the great weight of authority, shows a commendable tendency towards preventive justice.
MECHANICS' LIENS — EFFECT OF REPLACING DEFECTIVE MATERIALS ON TIME FOR FILING STATEMENT. A statute made the lien of a subcontractor for materials furnished conditional on the filing of a statement within sixty days after furnishing the materials. A subcontractor replaced certain defective materials at the instance of the owner of the building and filed a statement within sixty days afterwards. The other materials furnished by the subcontractor were all delivered more than sixty days before the filing of the statement. Held, that the subcontractor has no lien for the materials furnished. Cady Lumber Co. v. Reed, 133 N. W. 424 (Neb.).
Under such statutes the period for filing the statement begins to run after the last item has been furnished under the contract. Patton v. Matter, 21 Ind. App. 277,52 N. E. 173; Hensel v. Johnson, 94 Md. 729, 51 Atl. 575. The authorities on the question decided in the principal case are in conflict. The cases supporting the principal case are based on the ground that the materials are not furnished under the contract, but are given as a reparation for an injury inflicted. Harrison v. Homeopathic Association, 134 Pa. St. 558, 19 Atl. 804; Voightman v. Southern Ry. Co., 123 Tenn. 452, 131 S. W. 982. The cases opposed argue that the materials are furnished under the contract, that in furnishing them the subcontractor fulfils a hitherto imperfectly performed obligation. St. Louis National Stock Yards v. O'Reilly, 85 Ill. 546; Conlee v. Clark, 14 Ind. App. 205, 42 N. E. 762. The analysis of the latter cases would seem correct. It might be urged in objection to this view that it would subject the owner to the danger of a double payment where he had paid the original contractor sixty days after the delivery but before the discovery of the defects. But in such a case, it is submitted, the subcontractor would be estopped for this purpose to set up that the subsequently furnished materials were furnished under the contract.
MECHANICS' LIENS — MATERIALS FURNISHED BUT NOT USED. — The plaintiffs supplied iron and steel work for the construction of the defendants' building. Owing to a change in the plans over which the plaintiffs had no control, a part of the materials furnished by them was never used. A statute provided that “whoever ... furnishes labor or materials in erecting ... a house, building, or appurtenances . . . has a lien thereon.” Held, that the plaintiffs are not entitled to a lien for the unused materials. Fletcher-Crowell Co. v. Chevalier, 81 Atl. 578 (Me.).
Jurisdictions are squarely in conflict on whether materials furnished but not actually used can be the basis of a mechanic's lien under the statutes. See Boisot, MECHANICS' LIENS, $ 119; note to Central Lumber Co. v. Braddock Land and Granite Co., 13 Ann. Cas. II. The justice of mechanics' lien laws consists in charging the realty whose value has been enhanced by the addition of labor or materials as security for the price thereof. See Taggard v. Buckmore, 42 Me. 77, 81; Boisot, MECHANICS' LIENS, $ 7. Therefore, even a liberal construction of the statute should not include materials which are never used. Actual use should be required, though not necessarily physical incorporation into the structure. See 25 Harv. L. Rev. 92.
MORTGAGES - PRIORITIES - EFFECT OF LIS PENDENS ON MORTGAGE FOR FUTURE ADVANCES. The plaintiff gave A. notes to collect and invest the proceeds in land in the plaintiff's name. A. took title in his own name and executed a mortgage to secure future advances the defendants, who had no knowledge of the plaintiff's right. The plaintiff sued A. for an accounting and asserted a lien on the land, and during the suit money was advanced by the defendants, still without knowledge either of the plaintiff's right or of the suit. Held, that the defendants' mortgage for all the sums advanced is entitled to priority over the plaintiff's lien. Straeffer v. Rodman, 141 S. W. 742 (Ky.).
Where a person has acquired a right in specific property, the doctrine of lis pendens will not invalidate any act he may do after bringing of suit in pursuance of such right or for the purpose of carrying it into effect. Thus, where an agreement to sell is made before suit, a conveyance afterward is not invalidated. Parks v. Smoot's Admrs., 105 Ky. 63, 48 S. W. 146. So also a mortgagee may buy at his own sale pending a suit to establish a mechanic's lien. Andrews v. National Foundry & Pipe Works, 77 Fed. 774. By the weight of authority a mortgage for future advances vests a right in the mortgagee for all advances which may be made, if they are optional, unless there is actual notice of intervening encumbrances. Ward v. Cooke, 17 N. J. Eq. 93. And, if the advances are obligatory, actual notice will not invalidate them. Crane v. Deming, 7 Conn. 387. The principal case is therefore sound. As the doctrine of lis pendens does not apply, the mortgagees are bona fide purchasers without notice of the plaintiff's right.
MUNICIPAL CORPORATIONS – LIABILITY FOR TORTS — DAMACE CAUSED BY BURSTING OF SEWER OF INADEQUATE SIZE. — A city constructed a sewer, the capacity of which was insufficient to provide for the sewage and surface water reasonably to be expected. A rainstorm caused the sewer to burst, whereby goods in the cellar of the plaintiff's warehouse were damaged. Held, that if the rainstorm was extraordinary, the city is not liable. Geuder, Paeschke E Frey Co. v. City of Milwaukee, 133 N. W. 835 (Wis.).
A city is not answerable for damage caused by insufficiency of the plan of sewerage to drain the plaintiff's premises. Mills v. City of Brooklyn, 32 N. Y. 489; Robinson v. City of Everett, 191 Mass. 587, 77 N. E. 1151. It follows that the language of the principal case is too broad in intimating that a city must use due care provide means to carry away surface water ordinarily to be expected. A city is liable, however, when the execution of the plan of sewerage results in a "taking” of private property. Collecting water in an artificial channel with an inadequate outlet, which, it can be foreseen, will flood the plaintiff's lands, is a “taking” of his property. Ashley v. Port Huron, 35 Mich. 296; Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321. See 1 LEWIS, EMINENT DOMAIN, 3 ed., $ 65. The outlet must be large enough to provide for all water reasonably to be expected, and hence the city should be liable whether the storm is ordinary or extraordinary, if it is not unprecedented. Cf. Philadelphia, etc. R. Co. v. Davis, 68 Md. 281, 11 Atl. 822; Gulf,